Constitutional newspaper News The lack of DNA proof does not compromise the effectiveness and validity of the Post Mortem Paternity Declaration Judgment.Tags related news:

The Supreme Court of Ecuador resolved that the lack of DNA proof does not compromise the validity and effectiveness of the Post Mortem Paternity Declaration, since this test is not the only ideal evidence to prove the affiliation.

The Court explains that, in broad terms, affiliation is the set of legal relations, which determined by motherhood or paternity, link parents with their children.In that sense, he refers to the origin of the children regarding their parents and the relationship between them, characterized by a series of reciprocal rights and duties and interrelated with each other, such as the right to the name, to know their parents andoffspring, food, inheritance rights, among others.When based on the link of the generation, it originates a determining state of the position that human individuality occupies in the family as a child, derived in prerogatives and responsibilities, hence it is said, that there will be filiation when the link between parents and children ismoves to the legal level.

Likewise, the Court specifies that the affiliation can be by nature, called the one that has a biological basis, whose legal criteria to establish it is the fixation of the biological fact of the generation, giving legal recognition to the most frequent family relationships withinwhich the child develops his personality, integrates into society and naturally ensures the moral and economic attention of his parents.This kind of affiliation is the one that speaks article 24 of the Ecuadorian Civil Code, which can be matrimonial and extramarital, equal in effects and different due to its origin in a family unit or outside it.The extramarital affiliation has equal rights with marriage, since both determine the establishment of an identical legal relationship between the parents and the child.The only difference between these affiliations is in the form of recognition or legal determination.

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The Court warns that affiliation is part of the right to personal identity, as regards biological truth and family origin, looks at affiliation not only as a creator of parental legal relationship but as a guarantee of biological identity and enjoyment of thesame rights and opportunities as the rest of your family lineage.The right of personal identity includes genetic identity and filiative identity, the first seeks the biological reality of the person, its origin and, its genetic inheritance, while the second, is given from biological truth, but in certain circumstancesIt departs from genetic identity, as is the case of children born outside of marriage.

With regard to the action of the declaration of judicial paternity, the ruling affirms that the declaration imports the genetic identity of the child with respect to who is presumed or was his father (in the case of post Mortan declaration).To achieve such conviction, the scientific test of DNA is sufficient, given the degree of reliability it offers.However, in the principle of freedom of motherhood or paternity research, it is possible, in personal identity right.This principle takes its effects, when the legitimated liabilities, oppose the realization of the DNA test in their person or by exhuming the mortal remains of the presumable parent, an opposition that gives rise to the presumption of paternity or biological affiliation.

In that sense, the ruling states that, even, when the impossibility of the DNA exam with the alleged parent or its mortal remains, in the specific case of the declaration of affiliation, access to the genetic material of another ascendant, descendant, is descendanto Male collateral, then, the DNA exam is reliable between men presumably of the same lineage, because of the "and" chromosome identical that men of the same parental trunk are generationally inherited.

The ruling concludes by pointing out that, the purpose of the evidence is to bring the judge to the judge and given certain precise and concordant circumstances that as a whole lead to that conviction of the factual facts, can resolve on the basis of the judicial presumption.

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